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377 F.

3d 285

Barbara DOLAN; Michael Dolan, W/H, Appellants


v.
THE UNITED STATES POSTAL SERVICE; United States of
America.
No. 03-1840.

United States Court of Appeals, Third Circuit.


Submitted Under Third Circuit LAR 34.1(a) on February 10, 2004.
August 2, 2004.

Appeal from the United States District Court for the Eastern District of
Pennsylvania, Mary A. McLauglin, J.
James R. Radmore, Law Office of James R. Radmore, P.C., Philadelphia,
for Appellants.
Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United
States Attorney for Policy and Appeals, Virginia A. Gibson, Assistant
United States Attorney, Chief, Civil Division, Nancy L. Griffin, Assistant
United States Attorney, Philadelphia, for Appellees.
Before SCIRICA, Chief Judge, ROTH and MCKEE, Circuit Judges.
OPINION
ROTH, Circuit Judge.

Appellant Barbara Dolan was injured allegedly as a result of mail negligently


placed on her porch by a United States Postal Service (USPS) employee.
Having properly exhausted her administrative remedies, Dolan filed a claim
under the Federal Tort Claims Act (FTCA) in the United States District Court
for the Eastern District of Pennsylvania. Citing 28 U.S.C. 2680(b)' s
exception to the FTCA for negligent transmission of the mail, the government
filed a Fed.R.Civ.P. Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction and the District Court granted it. Dolan appeals, arguing that
2680(b)'s exception does not include immunity for the negligent delivery or

placing of the mail. This is an issue of first impression in this Circuit After
careful consideration, we conclude that the District Court was correct in its
determination and will affirm.
I. Factual and Procedural History
2

On August 25, 2001, Dolan fell over letters, packages and periodicals placed by
a USPS employee on her porch. As a result of the fall, Dolan suffered serious
injury.

In compliance with 28 U.S.C. 2675, Dolan filed an administrative claim prior


to filing her FTCA complaint. This administrative claim, however, was denied
on April 18, 2002. On October 15, 2002, Dolan filed a complaint under the
FTCA against the United States and the USPS in the United States District
Court for the Eastern District of Pennsylvania. Her husband, Michael Dolan,
also filed a FTCA claim for loss of consortium.

On February 7, 2003, the government filed its Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction. The Dolans responded, conceding that
the United States was the only appropriate defendant but otherwise opposing
the motion.

On March 19, 2003, the District Court granted the government's motion to
dismiss, holding that Barbara Dolan's claim was barred by 28 U.S.C. 2680(b).
The District Court also dismissed Michael Dolan's claim because it was
derivative of his wife's claim.

On appeal, the Dolans concede that Michael Dolan did not timely exhaust his
administrative remedies. Thus, the only the question before us is whether the
District Court properly dismissed Barbara Dolan's claim for lack of subject
matter jurisdiction.

II. Jurisdiction and Standard of Review


7

Because the Dolans brought their claim under the FTCA, the District Court had
jurisdiction pursuant to 28 U.S.C. 1346(b). We have appellate jurisdiction
under 28 U.S.C. 1291. Our review is plenary where the District Court
dismisses for lack of subject matter jurisdiction. Gould Elecs., Inc. v. United
States, 220 F.3d 169, 176 (3d Cir.2000).

III. Discussion

"It is a fundamental principle of sovereign immunity that federal courts do not


have jurisdiction over suits against the United States unless Congress, via a
statute, expressly and unequivocally waives the United States' immunity to
suit." United States v. Bein, 214 F.3d 408, 412 (3d Cir.2000) (citing United
States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)).
"[W]hen the Government does consent to be sued, `the terms of [the] waiver of
sovereign immunity define the extent of the court's jurisdiction.' "Id. (quoting
United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841
(1986)). "Waivers of the Government's sovereign immunity, to be effective,
must be unequivocally expressed, and any such waiver must be construed
strictly in favor of the sovereign." Id. (quoting United States v. Nordic Village,
Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)) (internal
quotation marks omitted). The FTCA waives the government's sovereign
immunity when government employees act negligently within the scope of their
official duties. 28 U.S.C. 1346(b).

At issue here is an exception to the FTCA which provides that this waiver shall
not apply to "[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matters." 28 U.S.C. 2680(b). Dolan contends
that the words "negligent transmission" in 2680(b) do not include a USPS
employee's negligent placing of the mail. In essence, she invites us to read
2680(b) as only providing the government immunity for mail lost, delayed or
damaged in transit.

10

Relying on United States v. Yellow Cab Co., 340 U.S. 543, 554, 71 S.Ct. 399,
95 L.Ed. 523 (1951), Dolan argues that, under the FTCA, immunity is
generally waived in favor of the injured party. Dolan also cites 2680(b)' s
legislative history as discussed in Suchomajcz v. United States, 465 F.Supp.
474, 476 (E.D.Pa.1979), in support of her more narrow definition of "negligent
transmission." She points out that the District Court in Suchomajcz noted that in
passing 2680(b) "Congress was concerned with shielding the courts from the
potential landslide of lawsuits that might be generated by the unavoidable
mishaps incident to the ordinary accepted operations of delivering millions of
packages and letters each year." Id., 465 F.Supp. at 476 (quoting Birnbaum v.
United States, 436 F.Supp. 967, 974 (E.D.N.Y.1977)). Dolan maintains that this
history indicates Congress only intended 2680(b) to protect the government
from claims resulting from the loss or delay of mail, not torts resulting from
negligently placed mail. While she concedes that Bono v. United States, 145
F.Supp.2d 441 (D.N.J.2001), the only prior case in this Circuit to substantially
address the facts and issue at hand, interpreted 2680(b) to bar the type of suit
she now brings, Dolan argues that both Bono court and the District Court in this
case erred in reading the statutory definition of "transmission" to include

negligent placing or delivery of the mail. Finally, she alleges that the FTCA's
underlying objectives are not served by a broad definition of "negligent
transmission." See Kosak v. United States, 465 U.S. 848, 858, 104 S.Ct. 1519,
79 L.Ed.2d 860 (1984).
11

While we note that the Second Circuit Court of Appeals recently held in Raila
v. United States, 355 F.3d 118 (2d Cir.2004), that the words "negligent
transmission" are limited to the loss or miscarriage of postal material, we
disagree with that holding. To the extent that "negligent transmission" is
ambiguous at all, any ambiguities in the language of a purported waiver of
sovereign immunity must be construed in favor of the government. Lane v.
Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Construing
2680(b) in such a way is made all the easier by the statute's expansive
language. The phrase "[a]ny claim arising out" evinces Congress's intent to
broaden rather than limit the exception for "negligent transmission of letters or
postal matter." 1

12

Moreover, 2680(b)'s legislative history makes plain that Congress intended to


protect the government from lawsuits that might be generated by the
unavoidable mishaps incident to the ordinary accepted operations of delivering
millions of packages and letters each year. Suchomajcz, 465 F.Supp. at 476.
Notwithstanding Dolan's arguments to the contrary, the USPS's "ordinary
accepted operations" of necessity must encompass more than merely the
mechanical sorting and transfer of the mail. Indeed, it is hard to imagine a more
ordinary accepted operation incident to delivering millions of packages and
letters each year than the ultimate act of delivery by USPS employees.

13

We thus agree with the District Court that there is nothing out of the ordinary
about a USPS employee delivering the mail or placing the mail on the porch
instead of in the mailbox. Dolan's accident was incidental to the USPS
employee placing the mail on the porch. Because USPS employees do not
monitor how the mail they deliver is retrieved by third-parties, mishaps related
to the retrieval of the mail may be unavoidable.

14

We hold therefore that in the context of delivering letters or postal matter,


"transmission" means the process of conveying from one person to another,
starting when the USPS receives the letter or postal matter and ending when the
USPS delivers the letter or postal matter. Such an interpretation of 2680(b)
furthers the FTCA's underlying objectives, particularly those of ensuring that a
key governmental activity will not be disrupted by damage suits and of limiting
the exposure of United States to excessive or fraudulent claims. See Kosak, 465
U.S. at 858, 104 S.Ct. 1519.

IV. Conclusion
15

For the foregoing reasons, we will affirm the judgment of the District Court.

Notes:
1

Robinson v. United States, 849 F.Supp. 799 (S.D.Ga.1994), reached a similar


interpretation of 2680(b)'s language. Id. at 802 (citing Kosak, 465 U.S. at 854,
104 S.Ct. 1519).

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